Today, a Tampa area homeowner lost her plea against an HOA to dismiss the eviction of her tenant, that ultimately left her without possession, control or access to her own property. On March 4, 2012, I blogged on this case. It raises important questions about the amount of power a community association should have over an owner’s property rights. Specifically, this relates to the rental provision enacted in 2010 that allows an association to demand rents from the tenant and to evict if the rent payment to the association is not made. Here, the HOA decided that it could not only collect rents, but also take possession of the property, change the locks, remodel and re-rent to someone of its choosing. In other words, it kicked the homeowner out of her own house and took over.

The issue is no more resolved today than it was yesterday. Why? The hearing was decided on a purely procedural issue, because the tenant and owners did not retain legal representation at an early stage of the process. Furthermore, the case does not act as a precedent because each owner’s case would be decided on the individual facts, and an owner should not be afraid to fight back. It may not even be too late for the tenant and owner in this case to seek other relief. As much as I understand the need for associations to recover assessments, no association has a right to ignore or make up the law as it goes along. In my opinion, that is what happened here.

There is more to this case than the eviction. Collecting rents and evicting are very different than obtaining possession and remodeling for the HOA’s benefit. The court granted the HOA possession of the property, and appointed a receiver with far-reaching powers and control over the property. The HOA changed the locks and repainted or remodeled the interior of the home. That is a lot of power — especially when there is no pending assessment foreclosure and no limit to the duration of the HOA’s or the receiver’s rights to control the property. Under the current court order, how and when does the homeowner regain control over her house?

If this HOA’s interpretation is correct, then an association can permanently evict an owner from his or her own property without foreclosing, and rent the property while depriving the owner of the income. Who remains responsible for paying the taxes, insurance and mortgage? The owner, of course. I don’t believe that is what the legislature intended. Do you?

Comments (5 Comments)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I guess HOA boards have the power to toss the US Constitution out the window whenever they feel like it.

And by the way Ms. Winters, thank you for being a voice of sanity in this mess.

We need to address this legislatively in both 720.3085 and 718.116. There are two areas that need clarifying in the rent provisions, and possibly more-

1. A writ of possession is ministerial under the landlord tenant statute which merely restores possession back to the owner/landlord – not some third party with no ownership rights. Here the writ of possession was put in the name of the HOA — which conflicts with the receiver order, by the way.

2. Language of limitation in the receiver order – there is no trigger to return the property to the owners. F.S. 720.3085 (a) states that the association may only demand payments until “all the monetary obligations of the parcel owner related to the parcel have been paid in full to the association and the association releases the tenant or until the tenant discontinues tenancy in the parcel.” However, F.S. 720.3085 (f) states only that the court may “supersede the effect of this subsection” by appointing a receiver. The receiver order is limitless and has no end. Theoretically, the HOA could be in posession forever – quite a neat trick to bypass assessment foreclosure. When you carve out a piece of a statute that fits somewhere else (like landlord tenant law) and stick it in Chapter 720 for HOAs there will be unintended consequences. That is almost guaranteed.

Now when you add to that the problems where the HOA violated the plain language of the statute and throw into the mix due process violations and impairment of contract, we have a real mess. The HOA totally ignored the plain language of the statute that did exist. The HOA demanded more than the amount of rent due to the owner, to cite just one example.

This problem is not going away. Last year an overly zealous attorney Eric Glazer working with Jan Bergemann, a non-attorney advocate for “still paying homeowners”, decided to cut and paste landlord tenant law right into CH 720 -from the lien and foreclosure section. Fortunately, that was too much even for the legislature. That was never sponsored, thank God. But it would have required the homeowner sued for assessment forclosue to put in the court registry (whatever was demanded) or face imminent judgment for foreclosure. The HOA should not be allowed to take possession without title, either.

We already have unintended consequences of legislation – legislation that may work well in landlord tenant law that relates to the tenancy interest but NOT with an ownership property interest.

This statute is not as bad as what had been proposed (but fortunately did not see the light of day). But the rental provision under 720 and 718 has some of the same flaws.

This is clearly an over-reaction to a dire economic situation for associations. It is not beneficial to still paying homeowner or homeowner associations to deprive homeowners of due process, deprive them of asserting basic defenses and to saddle them with with language designed for a different property interest.

It is a shame that the Legislature must spell out what should be common sense and a basic understanding that law must be interpreted together (in this case, age old property law). However, this rental provision statute both in 720.3085 and 718.116 does need some modification to preserve property rights and avoid constitutional violations. I know I will be writing my legislators and I surely hope you do too.

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I’m a little concerned with HOA’s becoming real property owners since they are not for profit corporations regulated under FS 617. Do they therefore have the right to dispose of the property after the the HOA is paid what is due them? If so who would get the proceeds or profits. Could the HOA just continue to collect rents and offset the other members HOA dues.

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DONNA DIMAGGIO BERGER is a Shareholder with the law firm of Becker & Poliakoff. She has represented all types of shared ownership communities throughout Florida over the last two decades and has worked closely with the Legislature to shape the laws that govern private residential communities.

LISA MAGILL is a shareholder in Becker & Poliakoff's statewide Community Association Law practice group. She has been a leader of and active in various organizations dedicated to community association issues, especially outreach and education.

LINDSAY RAPHAEL a partner with Tripp Scott, focuses her practice on condominium and homeowners association matters, as well as property financing and transaction counsel to buyers, sellers, lenders and developers of residential and commercial real estate. She is a regular contributor to Condo Management Magazine.

JEAN WINTERS has focused on representation of both community associations and homeowners living in associations since 2006. She is a partner at Winters & Winters, P.A. The firm has more than 30 years of combined experience in real property law.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Being general in nature, the information provided may not apply to your specific factual or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.